In what seems to be an increasing phenomenon, injured Plaintiffs/Insureds are being asked to sign Consent Forms when they attend a tort defence medical examination or an insurer examination (“IE”) pursuant to the SABS.  A common scenario arises when the Plaintiff/insured is suddenly presented with a Consent Form; refuses to sign it without first consulting with her lawyer; the examiner refuses to proceed with the assessment; and the whole process is stalled.  Is There a Legal...

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and Adam J. Tanel Associate, Thomson, Rogers The accident benefits maze is difficult to navigate at the best of times. This is especially true for victims of a traumatic brain injury (TBI). The Ontario Government recognized this special vulnerability with a 2010 regulation that declared that any individual with a Glasgow Coma Scale (GCS) reading of 9 or less (as the result of a collision) is automatically deemed to be catastrophically impaired. The purpose of this regulation was to create a “bright...

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and Esther J. Roche Associate Thomson, Rogers   Changes to Section 3 of the Statutory Accident Benefits Schedule (“the SABS”) were introduced by the Government of Ontario on September 1, 2010. The changes require an insured to prove expenses have been incurred in order to receive attendant care, housekeeping, and med/rehab benefits. Section 3(7)(e) of the SABS states that in order for an expense to be “incurred”, and thus payable by the insurer, it must...

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On March 26, 2013, a decision was rendered by the Financial Services Commission of Ontario in the case of Lenworth Scarlett and Belair Insurance Company Inc. The applicant, Lenworth Scarlett, suffered soft tissue injuries, psychological injury and a TMJ injury arising from a motor vehicle accident which occurred on September 18, 2010. The decision of Arbitrator John Wilson is the first decision regarding the Minor Injury Guideline ("MIG") pursuant to the MIG which came into effect on September 1...

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Since the Sept. 1, 2010 re-introduction of the concept of "incurred" expenses and the qualifying term "economic loss" in the Statutory Accident Benefits Schedule, automobile insurers and accident victims have debated how the terms incurred and economic loss should be applied when paying for allowable goods or services, Toronto personal injury lawyer Stacey L. Stevens writes in Lawyers Weekly. "The debate is even more pronounced when the person providing the goods or services is a...

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A streamlined accident benefits dispute process is needed to improve the system surrounding recovery for claimants, Toronto plaintiff’s personal injury lawyer Darcy Merkur writes in Law Times.  Read Law Times “What we need is a better dispute process that’s more efficient and timely,” writes Merkur, partner with Thomson Rogers. “We need a system that’s accessible without delays.” In the article, Merkur describes this common scenario: A...

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On November 23, 2012, David MacDonald's presented at the Financial Services Commission of Ontario (FSCO). His seminar topic "Succeeding on Mediations and Arbitrations"is available for viewing.

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With the return of the definition for the term "incurred", Insurers have been applying various interpretations of this term in order to reduce or limit the amount of attendant care payable since September 1, 2010. Recently, FSCO released a decision with respect to an Insurer’s attempt to pay the attendant care benefit based on the minimum wage applicable to the Insured’s residency rather than the Form 1 hourly rate. While this decision relates to a collision, which...

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